May v. Miller & Co.

CHILTON, 0. J. There was no proof of the execution of the instrument, and consequently no question is raised as to its admissibility under the common counts. It must, therefore, be admissible under the allegations contained in the special count, or it was improperly received. The counsel for the appellees seems to think, that since the Code, the same precision is not required in a complaint as was formerly necessary in declarations, and that it is sufficient if reasonable notice be afforded to the defendant of what he is called upon to answer ; that since the defendant has the right to demand of the plaintiff the exhibition of the [518] instrument declared on, so as to enable him to make his de-fence, the necessity for specific averments to prevent surprise does not exist. However this may be upon objection raised to the complaint, we are of opinion, nevertheless, that where the instrument produced in evidence varies from that described in the complaint, it is inadmissible ; and no inconvenience can result from adhering to this rule, since ample provision is made for amending the complaint, so as to avoid the variance. The complaint is that Bell made the note declared on, not for himself alone, but for and on behalf of himself and May. It is described as the bill of Bell and May, that is, in legal effect. But the bill produced is not the bill of Bell and May. The name of the latter nowhere appears on it; nor is it even averred in this count that he was one of the owners of the steamboat Messenger, on whose account, without naming them, the bill appears to be drawn by Bell as captain. It is very clear, we think, that the bill produced is not, in legal effect, the one declared on; and it was, therefore, improperly admitted. Whether the bill is such as would, under any averment, authorize a-recovery against both Bell and May, the latter being prima fade a total stranger to it, and Bell drawing it as captain on account of the steamboat Messenger and owners, is a question not now before us, and consequently we leave it undecided. It is clear that the name of the drawer must be inserted, or subscribed, to hold him liable. — Smith’s Mercantile Law, (ed. of 1854) p. 277; Fenn v. Harrison, 2 Durn. & East, 177. As the court erred in admitting the bill as evidence under the averments in the complaint, and in charging that the proof, if believed by the jury, authorized them in finding for the plaintiffs, the judgment must be reversed, and the cause remanded.